Sexual Assault, the Law, and Bill C-51

By: Tonya Kent

In Canada, there are many crimes that provoke members of our society to debate and discuss around what we think are appropriate measures on dealing with crimes involving drugs, guns, or sex work.  However, the most contentious topic and most debateable offence where people take very strong positions is sexual assault.

Sexual assault cases have especially been prevalent in the news, with the most popular case recently involving Jian Ghomeshi.  A number of groups advocating for the rights of complainants paid attention to the case and it sparked a huge national discussion around how the law treats complainants and the accused.  In the widely media covered trial, Mr. Ghomeshi was acquitted of the charges against him, as a number of emails between the complainants as well as emails and/or letters to Mr. Ghomeshi from one of the complainants detailing their private interactions was revealed.  That evidence that was brought about by Mr. Ghomeshi’s lawyer during cross examination were one of the lynchpins in ensuring his acquittal.  Many people were outraged, as they considered the acquittal a slap in the face of those who have been sexually assaulted and whether their story will be believed.  The issue in the law surrounding sexual assault is not about whether we want to believe the complaint, but about whether the evidence presented in court proves beyond a reasonable doubt the guilt of the accused.

Victims’ advocates groups have made great strides in protecting the rights of complainants.  Most of those strides are seen as fair and just by most members of society. Currently though, laws around the protection of complainants have now reached a point where the protection of complainants is being favoured at the expense of the presumption of innocence and the right of the accused to have the state prove their guilt instead of having the accused prove their innocence.  Bill C-51 dealt with a number of provisions of the Canadian Criminal Code, but most glaring in the eyes of many criminal defence lawyers were the provisions around disclosure of evidence from the defence.  Specifically, one of the proposed provisions around a positive obligation of the accused is to provide any private records of the complainant to the court that the accused plans to use in their defence for the Court to decide if they are relevant at trial.  The other provision would be that the accused should provide to the Crown with 60 days’ notice of any communications of a sexual nature between the accused and the complainant.

There are a number of questions to ask in regards to these proposed changes.  What is considered to be a private communication?  An email? A text? A Facebook message? A WhatsApp message? A hand written letter?  If some of those communications are on social media, are they really private? In sending them on a social media platform, did the complainant have a reasonable expectation of privacy in those messages?  I assume proponents of Bill C-51 would argue that the Judge would determine those issues when the information was disclosed by the accused before the trial started.  However, I would argue that to ask the accused to produce evidence before trial does not make sense.  The only purpose it serves is to allow the complainant to ready a response to any communications presented at a trial and help the Crown fix any flaws in their case.  This type of assistance in a trial provided by the accused to the Crown is perverse and puts the accused person at an extreme disadvantage in the long run at a trial.  We do not expect the accused in other offences or circumstances to assist their Crown in their case, save for providing the Crown with an alibi that the Crown could examine before a trial.

Creating a positive obligation on the accused to provide evidence to the Crown is fundamentally opposed to the premise that the Crown is expected to make their case against an accused person.  With an offence like robbery or assault, an accused is allowed to spring evidence on the Crown and the complainant with their own statements or communications to impeach their testimony.  This is the normal course and the Crown has to work with the evidence that they have and deal with any issues that arise.  The accused does not have to announce if they are going to call evidence, if any to the Crown until the day of the trial for a robbery, so why would there be a different expectation for a trial involving sexual assault?  Any protection of a complainant cannot extend to taking away an accused’s right to a fair trial and defence.  We cannot treat accused persons that face sexual assault charges and robbery offences in a different way.  Our Charter of Rights and Freedoms does not allow for such different treatment in that context.

Further, the administration of justice could be seen to be in disrepute if provisions like the ones that Bill C-51 are proposing pass.  Accused persons facing sexual assault matters in the Courts would be more disadvantaged than those facing other types of non-sexual offences.  This could be seen as a directly affecting one’s rights under section 11(d) of the Charter, which states that, “Any person charged with an offence has the right to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial trial”.  I interpret the reference to a fair hearing to mean that the accused has the right to a “full answer and defence” in regards to the charges against the accused.  Although there is case law that has found that the Crown is also entitled to a fair trial, a fair trial does not involve the accused helping the  Crown with their case to their own detriment. To allow a complainant and the Crown to access the accused’s evidence almost creates a situation where a complainant is being granted full and answer and defence before testifying against the accused.  The Charter could not have been created with such an interpretation in mind.  Simply, if the Charter meant for the complainant to have similar rights to the accused in regards to seeing evidence beforehand, it would have made that clear.

We already have a number of protections for a complainant in the sexual assault cases.  For example, an accused cannot just introduce a complainant’s private communications with a therapist.  The defence would need to bring a third party records application to demonstrate why those records would be relevant.  Obviously, those records are different, as the communications were to a licensed professional with the understanding that the communications would not be disclosed to anyone.  The same cannot be said for communications like text messages or emails in my opinion.  Further, officers of the Court as well as Justices are well aware that relying on stereotypes in sexual assault cases is inappropriate and would be or should be immediately halted if that was happening during a trial.

The system we have in place to protect accused person is historical and carefully thought out with good reason.  We cannot have a system where an accused person has a positive obligation to produce evidence or disclosure, as this would be in direct contradiction with the rights we have afforded to accused persons.  Bill C-51 should not pass with such provisions as they would be unconstitutional and would be an affront to the Canadian criminal justice system.